Mobil Oil (Nig.) Limited V. Chief J. O. Agadaigho (1988)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

This appeal arose from the decision of the Court of Appeal on an interlocutory application made before the High Court of Bendel State holden at Warri.

The Appellant, as Plaintiff, brought an action in the High Court on the 2nd day of January, 1987 against the Respondent, as Defendant. Its claims, as per writ of summons, are as follows –

“(1) A declaration that me dealer agreement dated 13th July, 1984 between the parties relating to the operation of the plaintiffs petrol filling and service station (retail outlet 222 round-about) at Warri/Sapele Road, Warri was determined on 16th August, 1986 by notice dated 16th July, 1986 and/or summarily by the Plaintiff in its sole opinion that an emergency had arisen from the Defendant’s unsatisfactory performance as a dealer constituting thereby a danger to the good operation of the said petrol filling and service station.

(2) An injunction restraining the Defendant by himself, his servants, workmen and agents or otherwise howsoever from entering and/or trespassing on the petrol filling and service station aforesaid save and except for the purpose of handing over to the Plaintiff of the equipment, petroleum and other products thereon in good order and condition.

(3) The sum of forty Naira (N40.00) per day from 16th August, 1986 until the date of the actual handing over of the equipment, petroleum and other products aforesaid by the Defendant to the Plaintiff in good order and condition, being liquidated damages payable by the Defendant to the Plaintiff for the latter’s failure and/or refusal to so hand over to the Plaintiff the equipment and products on the said petrol filling and service station.

(4) The sum of five hundred Naira (N500.00) per month from August, 1986 until the date of the actual handing over referred to in (2) and (3) above being reimbursement for the Defendant’s use of the service facilities provided by the Plaintiff at the said petrol filling and service station within the jurisdiction of this Honourable Court.

(5) Any further or other reliefs or orders as the Court may deem fit to grant or make in the circumstances.”

On the 22nd January, 1987, that is before pleadings were filed, the Plaintiff brought a motion under section 24 subsection (1) of the High Court of Bendel State Law, Cap.65 of the Laws of Bendel State, 1976 and Order 19 rules 9 and 11 of the High Court of Bendel State (Civil Procedure) Rules, Cap. 65 for an order or orders as follows-

“1. Commanding and/or enjoining the Defendant/ Respondent by himself, his servants, workmen and agents or otherwise howsoever to hand over to the Plaintiff/Applicant the equipment together with the keys thereto, petroleum and oil products on the Plaintiff/Applicant’s petrol filling round-about) lying and situate at Warri/Sapele Road, Warri pending the determination of this suit, AND THEREAFTER

2. Restraining the Defendant/Respondent by himself, his servants, workmen and agents or otherwise howsoever from entering and/or trespassing on the petrol filling and service station aforesaid pending the determination of this suit.

AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

In the affidavit in support of the motion, which was sworn to by the Senior Marketing Representative of the Plaintiff –

Mr. Ifeanyichukwu Molokwu, it was deposed in paragraph 3 thereof-,

“The dispute in this case arose from the contractual relations and business transactions between the parties herein as evidenced in writing by a dealer agreement dated 13th July, 1984 and signed by the parties on 27th July, 1984 attached hereto and marked as Exhibit ‘A’.”

The Defendant filed a counter-affidavit admitting paragraph 3 of the affidavit in support of the motion and admitting further that the petrol filling station which was the subject of the dispute between the parties was in his possession; and stated in paragraph 7 of the counter-affidavit that he had “been running the said Petrol Filling and Service Station to the best of my capability given the inadequate materials, equipments and products provided by the Plaintiff/Applicant.”

The motion was heard by Omosun J. (as he then was) who observed thus –

“It is clear to me that Plaintiff will suffer irreparable injury if the injunction is not granted. Damages apart, there are other losses which cannot be quantified. It is clear that considerable financial loss would be suffered by Plaintiff if the injunction were to be refused.

I do not think that Plaintiff can really be and concluded his ruling as follows –

“On a careful consideration of the available affidavit evidence, I will grant the orders sought. The Defendant/Respondent is to hand over the keys, petroleum and oil products on the Plaintiff/Applicant Petrol Station (Retail Outlet 222 Roundabout) at Warri/Sapele Road, Warri to the Plaintiff/Applicant pending the determination of this suit. He, his Servants, Agents, Workmen are restrained from entering or trespassing on the Petrol Filling and Service Station pending the determination of this Suit.”

Unhappy with the ruling, the Defendant applied to the High Court for leave to appeal but the application could not be heard by the High Court before the period prescribed for the hearing expired. The Defendant, therefore, applied to the Court of Appeal for the following orders-

“(1) Extension ‘of time within which to apply for leave to appeal against the Ruling/Decision of the Warri High Court dated the 16th day of April, 1987.

(2) Leave to appeal against the Ruling/Decision of the Warri High Court dated the 16th day of April, 1987.

(3) Stay of Execution of the Ruling/Decision of the Warri High Court dated the 16th day of April, 1987 pending the determination of this application and/or the appeal to be lodged pursuant to this application.

AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The Court of Appeal heard the motion and summarily ruled as follows-

“Upon listening to both counsel to the parties and after reading the motion paper and the affidavit in support thereof, this court is satisfied that Applicant tried his best to file the appeal within time until he was pressed into a situation in which the court below adjourned his application over a couple of days running over holidays or days on which the courts do not sit. On the very next working day, the Applicant went to the Court of Appeal in Benin City and filed this application. So it cannot be rightly said that there was any delay for which appellant should be blamed having regard to the fact that his cousin (a Dr. Akwa) in fact died at the material time.

The proposed grounds of appeal e.g. ground 1 and particularly Ground 4, contain arguable points. In the circumstances of the above, justice requires that Applicant be allowed extension of time to appeal for which he has prayed. Likewise, it appears only fair that Applicant be granted a stay of execution of the judgment pending the appeal in order to maintain the status quo as between both parties – especial (sic) as the Applicant is only an individual whilst the Respondent can he said to be a part of a Multinational Oil Company. The objection raised by counsel to the Respondent was both tenuous and unimpressive and it is accordingly refused. The prayers (Nos. (1), (2), and (3) sought by the Applicant are hereby granted.

Appellant is hereby allowed 7 days from today to appeal.”

It is from this ruling that the appeal before us is brought by the Plaintiff. The issues for determination have been summarised in the Plaintiff’s brief of argument to be thus –

“1. Whether the Court of Appeal exercised its discretion judicially and judiciously in granting in this case extension of time within which to apply for leave to appeal as well as leave to appeal, as it did immediately after the conclusion of argument by counsel; without reference to the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules, 1981, and without considering and following the binding decisions of this Honourable Court in Ibodo v. Enarofia, (1980) 5-7 S.C. 42 and University of Lagos v. Olaniyan, (1985) 1 S.C. 295; (1985) 1 NWLR (Pt.1) 156 duly cited in that Court.

2. Whether the Court of Appeal exercised its discretion judicially and judiciously in granting the Respondent extension of time within which to appeal and leave to appeal without seeing the relevant part of the proceedings in the High Court referred to in the Ruling of Court as well as in the proposed grounds of appeal exhibited in support of the application.
3. Whether the Court of Appeal was right in granting to the Respondent a stay of execution pending the determination of his appeal from the High Court to that Court.”

Now by Order 3 rule 4(2) of the Court of Appeal Rules, 1981-

“(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

These provisions are in pari materia with those of Order 7 rule 4(2) of the Supreme Court Rules, 1977(now repealed by the Supreme Court Rules, 1985) – see Order 1 rule 1(2) thereof).In interpreting Order 7 rule 4(2) of the Supreme Court Rules, 1977, this Court held in Ukpe Ibodo & Ors. v. Iguasi Enarofia & Ors. (1980) 5-7 S.C. 42 at p.51 that in an application for extension of time within which to appeal –

“There must therefore be –

(i) good and substantial reasons for the failure to appeal within the period prescribed, and

(ii) grounds of appeal which prima facie show good cause why the appeal should be heard.”

In the present case, the Defendant had shown in the affidavit in support of his application good and substantial reasons for his failure to appeal in time. These are firstly, that he lost his first cousin in a motor accident and he was involved in the funeral arrangements. In the Defendant’s exact words in paragraphs 6 and 7 of his affidavit in support of the application –

“6. That hours after the aforesaid Ruling was delivered (by the High Court), I lost a 1st cousin of mine, Dr. Akwah who is (sic) Managing Director of Bireh Hospital, Warri who died in a fatal motor accident at Ahoada in Rivers State of Nigeria and funeral arrangements for my said cousin at Ozero in Isako Local Government Area about 100 kilometers from Warri made it impossible for me to liaise with my counsel. Dr. D.O. Mowoe in Warri about my instructions that he should take all necessary steps to appeal against the said Ruling/Decision. I am one of the ciders of my family.

7. That on 27-4-87 evening, I managed to wriggle free from home and dashed down to Warn to find out the position of my appeal papers. My said counsel told me time was getting against us and I should report the next day, 28-4-87 at all costs for the motion for leave to appeal to be filed.”

Secondly, although the application was eventually filed in the High Court, Warn on 28th April, 1987, that is within the 14 days prescribed by Section 25 subsection (2) of the Court of Appeal Act, 1976, it did not come up for hearing until the 30th April, 1987, by which time the time allowed (14 days) had expired.

However, the contention of Dr. Odje, learned Senior Advocate for the plaintiff is that the materials put before the Court of Appeal by the defendant were not, on the authority of Ibodo’s case (supra) and the case of University of Lagos (supra) sufficient to sustain the application. Now what were these materials Apart from the affidavit in support of the application to the Court of Appeal, there were annexed the ruling of the High Court (exhibit A) and the proposed grounds of appeal (exhibit B). In explaining what materials will he required in support of an application under Order 7 rule 4(2) of the Supreme Court Rules, 1977, Aniagolu, J.S.C. stated in Ibodo’s case as follows-

“As I have already said, the documents filed by the applicants would ordinarily be insufficient materials upon which this Court will come to a decision. The judgment of the High Court was not exhibited by the applicants. It cannot be over-emphasised that where the applicant required the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which it will be necessary for the Court to see in order to decide on the application must be exhibited. These normally should include, among others, the affidavits of the applicant and/or his Counsel; the judgments of the Courts below; the exhibits or so much of the exhibits on which the applicant will rely to argue his application; his proposed grounds of appeal; where necessary, the record of proceedings or so much of the record of proceedings as will enable the Court to find on the substantiality of those grounds of appeal based solely or in the main, on the evidence given; the brief of the applicant’s argument and any other document or documents which in the special circumstances of a particular case the Court will need to see in order to be able to decide on the matters in contest in the application.”

This dictum was considered in the case of University of Lagos v. Olaniyan, (1985) 1 NWLR 156, where Nnamani, J.S.C. said at p. 166 thereof –

“It is obvious that the judgment of this Court in Ibodo’s case has not laid down rigid rules it is not in every case that all the materials mentioned therein – record of proceedings, judgments etc – must be annexed to an application.”

Bello, J.S.C. (as he then was) said on p.168-

“In my view, Ibodo’s case did not lay down a fast and rigid rule as to fetter the discretion of the court……Each case must be decided on its facts and circumstances. In some cases a copy of the judgment or ruling appealed against may be sufficient for the purpose. Such cases are where the ground of appeal complain against errors of law or misdirection of law in the judgment…..”

(italics mine)

And Eso, J.S.C. remarked on p.171 that-

“It is true that the Supreme Court did not lay down a rigid rule as to exact materials that should be put before the Court.”

It is therefore clear from the foregoing that each case will have to be considered in the light of its peculiarity or circumstances. In the present case, Dr. Odje complained in the Appellant’s brief that the Court of Appeal – “would not and could not have exercised its discretion in favour of the Respondent (Defendant) who did not exhibit to his application the relevant part of the proceedings of the High Court;” but did not show to us of what relevance the proceedings would have been. Looking at the proposed grounds of appeal exhibited by the Defendant (exhibit B) his contention concern the ruling of the High Court and not the rest of the proceedings before it. In my opinion, the affidavit in support of the Defendant’s application together with the ruling of the High Court and the proposed grounds of appeal were sufficient materials on which the Court of Appeal could and did consider the application for extension of time within which to apply for leave to appeal and for leave to appeal.

Perhaps it is necessary to distinguish the present case from the cases of Ibodo and the University of Lagos v. Olaniyan. In the present case the ruling of the High Court was exhibited to the Defendants, affidavit in support of his application. In the latter cases, the judgment and the ruling of the High Court were not, respectively, attached to the applications.

The foregoing disposes of the first two issues for determination. It now remains to deal with the third issue. By section 24 subsection (1) of the High Court of Bendel State Law, Cap. 65, as relevant-

“The court may grant……….an injunction…………by an interlocutory order in all cases in which it appears to the court to he just or convenient so to do.”

And by Order 19 rules 9 and 11 of the High Court of Bendel State (Civil Procedure) Rules, Cap. 65-

“9. The Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient so to do, and any such order may be made either conditionally or on such terms as the Court thinks fit.”

“11. In any cause or matter in which an injunction has been or might have been claimed, the Plaintiff may, before or after judgment, apply for an injunction to restrain the Defendant or Respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract; and the Court or a Judge may grant the injunction, either upon or without terms, as may be just:….”

It is quite clear from these quotations that Omosun J. (as he then was) had the power to grant the Plaintiffs application. It did not matter that pleadings had not been delivered when the application came before the learned Judge, because pleadings were not necessary before application for interim or interlocutory injunction can be brought or be granted – Egbe v. Onogun, (1972) 1 All N.L.R. Part 195 at p.99 and Obeya Memorial Hospital v. Attorney-General of the Federation, (1987) 3 NWLR (Pt.60) 325 at p. 340. The principles upon which an interlocutory injunction can be issued have been stated by this Court in a number of cases, but the most recent is the case of Obeya Memorial Hospital, (supra) in which the dictum of Lord Diplock in American Cyanamid v. Ethicon Ltd., (1975) A.C.396 at pp.407 was cited with approval. I do not think it necessary to restate the principles here. Suffice to say that Omosun J. based his ruling on the affidavit and counter-affidavit before him and the doctrine of balance of convenience before granting the interlocutory injunction sought by the Plaintiff.

Dr. Odje, learned Senior Advocate has complained inter alia that the Court of Appeal was wrong in interfering with the decision of the High Court to grant the interlocutory injunction since there was no appeal pending before it. He argued further that the Court of Appeal failed to direct its attention to the provisions of section 25 subsection (1) of the Court of Appeal Act, 1976 and Order 3 rule 5 of the Court of Appeal Rules, 1981 in dealing with the Defendant’s application to grant him stay of execution of the order of the High Court.

It is true that there was no appeal by the Defendant to the Court of Appeal when his application was heard by the Court. The power to grant a stay of execution is expressly conferred on the Court of Appeal by section 18 of the Court of Appeal Act, 1976 which provides-

“18. An appeal under this Part shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”

These provisions are word for word the same as those of section 24 of the Supreme Court Act, 1960 applicable to this Court. In interpreting the provisions of section 24 this Court had held in a number of cases that before an application to it for stay of execution can be competent an appeal from the decision sought to be stayed must first of all be filed by the party applying for the stay of execution – P.O.P. Martins v. Nicannar Food Co. Ltd & Anor. S.C.230/1986 (1988) 2 N.W.L.R. (Pt. 74) p.75 judgment delivered on the 25th March, 1988. This construction of section 24 applies also to the provisions of section 18 of the Court of Appeal Act, 1976 since it is in pari material with the former – See University of Lagos v. Olaniyan, (supra) at pp.167, 169,170 and 174. It therefore follows that the Court of Appeal was in error to grant the application for stay of execution when there was no appeal pending before it.

Furthermore, the reasons given by the Court of Appeal in granting the stay of execution are –

“…..it appears only fair that applicant be granted a stay of execution of the judgment (sic ruling) pending the appeal in order to maintain the status quo as between both parties – especial (sic) as the applicant is only an individual whilst the respondent can be said to be a part of Multinational Oil Company.”

(italics mine)

Surely, the reasons given by the Court of Appeal in granting the application are not only inadequate but also irrelevant and cannot satisfy the principles laid down in numerous cases for granting a stay of execution – see Vaswani Trading Co. Savalakh, (1972) 1 All N.L.R. (Part 2) 483; Dada v. The University of Lagos & Ors. (1971) 1 V.L.R. 344; Ebegbuna v. Ebegbuna, (1974) 3 W.S.C.A. 23; Nwajekwu Emefisi & Ors. v. Mbanugwo & Ors., (1970-71) 1 E.C.S.L.R. 100; Wilson v. Church (No.2), (1879) 2 Ch.D. 454 at p.458 and P.O.P. Martin’s case (supra).

Dr. Mowoe, learned counsel for the Defendant has not directly replied to the submission made by learned Senior Advocate that the reasons given by the Court of Appeal in granting the stay of execution were irrelevant. Instead he complained that pages 30 to 50 of the record of appeal were not available to the Court of Appeal when it gave its ruling and therefore the materials contained in those pages of the record are not part of the record of the proceedings in the lower Court. Learned counsel then argued that they could not be looked at by this Court since they are extraneous and irrelevant.

Under Order 7 rule 6 of the Supreme Court Rules, 1985, it is not necessary for the Registrar of the Court of Appeal to prepare the record of proceedings where the decision of the Court of Appeal being appealed against to this Court is in respect of –

(1) An interlocutory decision made by the Court of Appeal or

(2) A decision made by the Court of Appeal on appeal from interlocutory decision of a High Court.

It is the duty of the Appellant to compile the record by himself unless the Court otherwise directs – See Jadesimi v. Okotie-Eboh, (1985) 2 N.W.L.R. 909. The present appeal falls under category (2). It is an appeal from the decision of the Court of Appeal in respect of an interlocutory decision of the High Court of Bendel State. The record of proceedings was therefore prepared by the Plaintiffs counsel in accordance with Over 7 rule 7(1) which states –

“7.(1) The Appellant shall, in appeal to which this Rule applies either simultaneously with filing his Notice of Appeal or within 14 days thereafter, prepare for the use of the Judges a Record comprising –

(a) the index;

(b) office copies of documents and proceedings which the Appellant considers relevant to the appeal;

(c) office copy of the order for leave to appeal (if any); and

(d) a copy of the notice of appeal.

Pages 30 to 50 of the record complained against by learned counsel for the Defendant, contain the following documents-

(1) Plaintiff’s motion on notice in the High Court for interlocutory injunction with the supporting affidavit thereto to which exhibits A (the “dealer agreement” between the parties) is attached.

(2) The Defendant’s counter-affidavit to the Plaintiffs affidavit in the High Court in support of the application for interlocutory injunction and

(3) The Defendants motion on notice in the High Court for inter alia leave to appeal against the ruling of the High Court together with the affidavit in support thereto.

After compiling the record of appeal, Plaintiff’s counsel – Jomeyovbin John Aguarintoma Rerri, of Counsel, swore to an affidavit of verification in accordance with Order 7 rule 7(3) of the Supreme Court Rules, 1985. Paragraphs 2, 3 and 4 of the affidavit read –

“2. I am also one of the Counsel who took part in the conduct of the Appellants case in the Courts below, and as such I am seised of the facts and circumstances of this appeal.

3. In particular, I obtained the proceedings of the Court of Appeal and the documents considered relevant from the Appellant’s point of view, which have been included in the Record of Appeal in this case
4. I have personally read the proceedings and documents included in the Record of Appeal and also compared-the same with the certified true copies of the said proceedings and documents, and have found the said proceedings and documents accurate.”

(Italics mine)

The Defendant (who is the Respondent in this appeal) has not filed any counter-affidavit to challenge the facts deposed to by Mr. Rerri, as he ought to have done; nor has he taken any action in compliance with Order 7 rule 7(2) of the Supreme Court Rules, 1985 which provides-

“If the Respondent considers that the documents and proceedings filed by the Appellant are inaccurate or are not sufficient for the purposes of the appeal, he shall within a period of 7 days after service on him of the Record filed by the Appellant, file any further or other documents that he wishes to file.”

Instead learned counsel challenged the record, compiled by the Plaintiff, in the Respondents brief of argument. The Defendants counsel has therefore taken the wrong step. His manner of challenging the record of appeal being wrong, his complaint cannot therefore be entertained.

One other procedural point that needs he mentioned is that Order 19 rule 11 of the High Court of Bendel State (Civil Procedure) Rules, Cap.65 which has been quoted earlier and which enables a Plaintiff to apply to the High Court for an interlocutory injunction, has a proviso. The proviso reads

“Provided that an order for an injunction may be discharged or varied or set-aside by the (High) Court upon application made thereto by any party dissatisfied with such order.”

The Defendant did not take advantage of the proviso. Instead he made his application to the Court of Appeal for extension of time to apply for leave and for leave to appeal. While it was within his right to take the step he did, time and cost would have been saved and the need to apply to the Court of Appeal for stay of execution would perhaps have been unnecessary, if the procedure stated in the proviso had been followed.

Be that as it may, I finally come to the conclusion that this appeal has merit. Accordingly it is hereby allowed. The ruling of the Court of Appeal is set-aside, with N500.00 costs to the Appellant.A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, UWAIS, J.S.C. and I entirely agree with his reasoning and conclusions.

In complaining about the grant of extension of time and leave to appeal by the Court of Appeal. learned Senior Advocate for the Plaintiff/Appellant, Dr. Odje, drew attention to the alleged failure of the Court of Appeal to specifically refer to two authorities of this Court relevant to the issue i.e. Omniyan v. University of Lagos (1985) 1 S.C. 295; (1985) 1 N.W.L.R. (Pt. 1) 156, 167 and Ibodo v. Enarofia (1980) 5-7 S.C. 42. The short answer to this is that I do not think it is necessary for the Court of Appeal to state specifically that they were aware of these two decisions before one can be sure that the Court followed the principles established by them. As regards the sufficiency of the materials before the Court of Appeal, it is established that this Court did not in Ibodo’s case set up a rigid rule. Each case will be considered an its own peculiar circumstances. In this case, I would have thought it necessary that Respondent ought to have attached the dealership agreement tendered in the High Court as Exhibit A. This was the document regulating the relationship between the parties. Indeed this exhibit was mentioned by the Respondent in proposed grounds 1 (iii) and 3 particulars (i), (ii) and (iii). In determining whether there were arguable points, the Court of Appeal may have wanted to see the terms of that agreement. Nevertheless, I am inclined to agree with my learned brother that looking at the totality of the materials before the Court of Appeal, they were enough to support the discretion exercised by that Court. The main ground on which the appeal must succeed is of course the absence of a pending appeal in the Court of Appeal at the time that Court granted a stay of execution of the order made by the High Court. This Court has in several decisions held that stay of execution will not be granted when no appeal is pending. See P.O.P. Martins v. Nacannar Food Co. Ltd. (1986) S.C. 230 (1988) 2 N.W.L.R. (Pt. 74) p.75. (See section 18 of the Court of Appeal Act. No. 43 of 1976).

For these reasons and the fuller reasons in the lead judgment, I too would allow this appeal. I abide by all the orders in the judgment of my learned brother, Uwais, J.S.C.

A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother Uwais, J .S.C., to which I entirely agree. I only add below my own reasons in amplification of the much fuller and detailed reasons contained in his lead judgment.

This is an interlocutory appeal against the judgment of the Court of Appeal Division sitting at Benin City and delivered on the 11th May, 1987. The Court of Appeal allowed the appeal against an interlocutory ruling of the High Court of Bendel State sitting at Warri which granted the application of the Plaintiffs, who are now the Appellants for an order:

“1. Commanding and/or enjoining the Defendant/ Respondent by himself, his servants, workmen, and agents or otherwise howsoever to hand over to the Plaintiff/Applicant the equipment together with the keys thereto, petroleum and oil products on the plaintiff/applicant’s petrol filing and service station (retail outlet 222 round-about) lying and situate at Warri/Sapele Road, Warri, pending the determination of this suit, AND THEREAFTER –

2. Restraining the Defendant/Respondent by himself, his servants, workmen and agents or otherwise howsoever from entering and/or trespassing on the petrol filling and service station aforesaid pending the determination of this suit…”

There is between the parties, an agreement, referred to as “Dealer Agreement” which enabled the Defendant to occupy and sell petroleum, and petroleum products in one of the petrol filling stations owned by Plaintiffs. The agreement is subject to termination by either party on giving thirty days notice. The Plaintiff dissatisfied with the Defendant’s occupation of the premises has exercised his rights under the agreement. The Defendant has refused to give up possession, hence this action. The relevant terms of the agreement are as follows –

The Plaintiff/Appellant had on 211/87 issued a writ of summons against the Defendant/Respondent in Suit No.W/1/87 claiming as follows –

(1) A declaration that the dealer agreement dated 13th July, 1984., between the parties relating to the operation of the Plaintiff’s petrol filling and service station (retail outlet 222 round-about) at Warri/Sapele Road, Warri was determined on 16th August, 1986 by notice dated 16th July, 1986 and/or summarily by the Plaintiff in its sale opinion that an emergency had arisen from the Defendant’s unsatisfactory performance as a dealer constituting thereby a danger to the good operation of the said petrol filling and service station.

(2) An injunction restraining the Defendant by himself, his servants, workmen and agents or otherwise howsoever from entering and/or trespassing on the petrol filling and service station aforesaid save and except for the purpose of handing over to the plaintiff of the equipment, petroleum and other products thereon in good order and condition.

(3) The sum of forty naira (N40.00) per day from 16th August, 1986 until the date of the actual handing over of the equipment, petroleum and other products aforesaid by the Defendant to the Plaintiff in good order and condition, being liquidated damages payable by the Defendant to the Plaintiff for the latter’s failure and/or refusal to so hand over to the Plaintiff the equipment and products on the said petrol filling and service station.

(4) The sum of five hundred naira (N500.00) per month from August, 1986 until the date of the actual handing over referred to in (2) and (3) above being reimbursement for the Defendant’s use of the service facilities provided by the Plaintiff at the said petrol filling and service station within the jurisdiction of this Honourable Court.

(5) Any further or other reliefs or orders as the Court may deem fit to grant or make in the circumstances.

Before issues were joined, Plaintiff brought an application for an order as stated above. The learned Judge after hearing argument granted the orders sought on the 16th April, 1987, as follows

‘The Defendant/Respondent is to hand over the keys, petroleum and oil products on the Plaintiff/Applicant Petrol Station (Retail Outlet 222 Round-about) at Warri/Sapele Road, Warri to the Plaintiff/Applicant pending the determination of this suit. He, his servants, Agents, Workmen are restrained from entering or trespassing on the Petrol Filling and Service Station pending the determination of this suit.”

The Defendant/Respondent after unsuccessfully applying for leave to appeal to the Judge brought a motion dated 4th May, 1987, which was fixed for hearing on the 11th May, 1987 praying the Court of Appeal for the following orders –

(1) Extension of time within which to apply for leave to appeal against the Ruling/Decision of the Warri High Court dated the 16th day of April, 1987.

(2) Leave to appeal against the Ruling/Decision of the Warri High Court dated the 16th day of April, 1987.

(3) Stay of Execution of the Ruling/Decision of the Warri High Court dated the 16th day of April, 1987, pending the determination of this application and/or the appeal to be lodged pursuant to this application.-‘

Defendant/Respondent also asked for such further or other orders as this Honourable Court may deem fit to make in the circumstances. The proposed grounds of appeal against the ruling were also annexed to the application. The Court of Appeal granted all the prayers sought on the 11th May, 1987. It is necessary to reproduce in full the ruling of the Court of Appeal which is as follows –

“Ruling by Court: Upon listening to both Counsel to the parties and after reading the motion paper and the affidavit in support thereof, this Court is satisfied that applicant tried his best to file the appeal within time until he was pressed into a situation in which the Court below adjourned his application over a couple of days running over holidays or days on which the courts do not sit.

On the very next working day, the applicant went to the Court of Appeal in Benin City and filed this application. So it cannot be rightly said that there was any delay for which appellant should be blamed having regard to the fact that his (sic) cousin in (a Dr. Akwa) in fact died at the material time. The proposed grounds of appeal e.g. ground/and particularly Ground 4, contain arguable points. In the circumstances of the above, justice requires that applicant be allowed extension of time to appeal for which he has prayed. Likewise, it appears only fair that applicant be granted a stay of execution of the judgment pending the appeal in order to maintain the status quo as between both parties – especially as the applicant is only an individual whilst the respondent can be said to be a part of a Multinational Oil Company. The objection raised by the counsel to the respondent was both tenuous and unimpressive and it is accordingly refused. The prayers (Nos. (1), (2), (3) – sought by the Applicant are hereby granted. Appellant is hereby allowed 7 days from today to appeal.”

This is the ruling subject matter of the appeal before us. Plaintiff/Appellant sought and was granted leave of the Court of Appeal to appeal against the ruling on certain grounds of facts and mixed law and facts. The grounds of appeal filed are as follows –

“(1) The Court of Appeal erred in law in granting the Respondent extension of time within which to appeal as well as leave to appeal against the decision/ ruling of the High Court in disregard of the mandatory provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 1981.

(2) The Court of Appeal erred in law in not considering and following the binding decisions of the Supreme Court in & Ors. v. Enarofia & Ors. (1980) 5-7 S.C. 42 and University of Lagos & Allor. v. Olaniyan & Ors. (1985) 1 S.C.295; (1985) 1 NWLR (Pt.1) 156, duly drawn to the attention of the Court, which had interpreted provisions in pari materia with Order 3 Rule 4(2) of the Court of Appeal Rules, 1981.

(3) The Court of Appeal failed to exercise its discretion judicially and judiciously or exercised its discretion wrongly in granting Respondent extension of time within which to appeal as well as leave to appeal in this case when:

(a) The Court was not seised of any part of the record of proceedings in the High Court, particularly the Dealer Agreement copiously referred to in both the decision/ ruling of the High Court and the proposed grounds of appeal exhibited in support of the application; and

(b) It is impossible to decide that the said proposed grounds of appeal prima facie showed good cause why the appeal should be heard, without recourse being had by the Court of Appeal to the record of the High Court, particularly the Dealer Agreement which the Court of Appeal was bound to construe.

(4) There being no appeal duly brought by the Respondent against the decision/ruling of the High Court, the Court of Appeal lacked jurisdiction or power to grant a stay of execution of the said decision/ruling.

(5) The Court of Appeal erred in law and on the facts in granting a stay of execution of the decision/ruling of the High Court dealing with the relationship between the parties as licensor and licensee.

PARTICULARS

(a) Under the Dealer Agreement binding between the parties, the Respondent as licensee had only the bare privilege of remaining on the premises for the express purpose of operating the Appellant’s equipment thereon subject to the leave and licence of the Appellant which could determine and did determine the privilege and licence summarily and/or by 30 days notice at the longest.

(b) It is common ground that the Respondent has nearly a year ago stopped operating the Appellant’s equipment in the petrol station, but has since been selling his own goods for his own benefit in the Appellant’s petrol station.

(c) The grant to the Respondent of stay of execution of the decision/ruling is tantamount to the grant of interlocutory injunction in favour of a licensee to enable him to sell his goods for his own benefit on the Appellant’s filling station pending the determination of his appeal which will not be determined until at least two years from date.

(6) The stay of execution granted in this case has occasioned injustice to the Appellant, having regard to the particulars set out in ground 5(a), (b) and (c) above.

Both counsel to the parties in this appeal have filed their briefs of argument which they relied upon in their arguments before us. Each counsel also expatiated on aspects of the brief filed.

Although both counsel formulated their issues for determination differently, they were ad idem on the question whether

(a) The Court of Appeal exercised its discretion correctly in granting extension of time within which to apply for leave and for leave to appeal against the ruling of the High court.

(b) The Court of Appeal was right in granting a stay of execution of the ruling of the High Court pending the determination of the appeal against the decision of the High Court.

I consider it expedient to discuss first the issue of stay of execution pending appeal which is the subject matter of grounds 4, 5 and 6 of Appellant’s grounds of appeal.

Dr. Mudiaga Odje, S.A.N. dwelt heavily on the issue whether the Appellant in the court below, herein the Respondent, satisfied the conditions for the grant of stay of execution. Learned Counsel after referring to the Dealer Agreement between the parties, and the clause for the right to terminate the agreement on either side, submitted that Respondent had no proprietary right which could be protected. He submitted that the Respondent was a mere licensee and had no interest worthy of preservation by order of stay of execution. Counsel cited and relied on Mobil Oil Nigeria Ltd. v. I. M. Johnson (1961) 1 All N.L.R. (Pt. 1) 93 at p.101; Mobil Oil Nigeria Ltd. v. Akinfosile (1969) N.M.L.R. 217 at p.220-221.

It was submitted also that Respondent did not make the application for stay of execution first to the High Court before applying to the Court of Appeal as was required by Order 3 rule 3(4) of the Court of Appeal Rules, 1981. Finally counsel then made what was regarded probably as the most pertinent submission, that at the time the Court of Appeal made the order for stay of execution, no appeal had been brought by the Respondent in accordance with the provisions of section 25(1) of the Court of Appeal Act No. 43 of 1976 and Order 3 rule 5 of the Court of Appeal Rules 1981.

In his reply Dr. Mowoe submitted that the materials relied upon by counsel to the Appellants in challenging the ruling of the Court of Appeal were not placed before that Court when the ruling was made and did not form part of the proceedings of that court and cannot now be used to challenge the ruling.

It was submitted that the Court of Appeal relied on the uncontradicted averments in paragraphs 21, 22, 23 of Respondents’ affidavit in support of the application before it. He finally submitted that the Court of Appeal was right to grant a stay of execution. Dr. Mowoe did not reply to the crucial and fundamental issue raised by counsel to the Appellant that there was no appeal before the Court in respect of which a stay of execution can be granted. The question of the exercise of the jurisdiction of the Court of Appeal to stay execution of judgment pending an appeal following a notice of appeal has not infrequently come before the courts. Section 18 of the Court of Appeal Act No. 43 of 1976 which enables the Court to grant stay of execution provides as follows –

“18. An appeal under this Part shall not operate as a stay of execution, hut the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”

The rules of the Court of Appeal, 1981, Order 3, r.5 provides that

“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below.”

It has been held in Ogunremi v. Dada (1962) 1 All NLR 663, 668, that the mere giving of a notice of appeal is not sufficient to consider that the appeal has been entered. – See also Yola v. Agogo (1975) 1 NMLR 245. It is clear from the provisions of Order 3 r.13(2) that an appeal is only entered when the record of appeal has been forwarded to and received by the Registrar of the Court of Appeal.

Order 3 r.13(2) provides –

“The Registrar of the court below shall also cause to be served on all parties mentioned in the notice of appeal who have filed an address for service a notice that the record has been forwarded to the Registrar of the Court who shall in due course enter the appeal in the cause list.”

The above rule is in pari materia with Order VII r.12(2) rules of the Supreme Court considered in Abina & Ors. v. Tika Tore Press Ltd. (1968) 1 All NLR 210 and Cesare Missini & Ors v. Olasubomi Balogan (1968)1 All NLR 318. In each of the these cases, the Supreme Court held that the conduct of the applicant that he is anxious to have the matter determined in the Supreme Court will be judged by the fact that he has entered the appeal in the Supreme Court. In Ogunremi v. Dada, and Abina & Ors. v. Tika Tore, Cesare Missini & Ors. v. Halogan, the Supreme Court proceeded on the view that there has been an application in the lower court which was refused before the notice of appeal was filed in the Supreme Court. In such a circumstance the application which was refused could be made to the Supreme Court and decided on its merits even when the appeal has not been entered. Thus the law is that when an appeal has been brought but before it is entered in the appellate court, both the court below and the appellate court have jurisdiction to entertain any interlocutory applications. But once the appeal has been entered, the court below no longer has jurisdiction, except to carry out the orders of the appellate court.

The question in this case for the purpose of exercise of jurisdiction to grant the stay of execution, is whether an appeal was brought in accordance with the rules. It is therefore necessary and pertinent to reproduce the relevant averments in Respondent’s affidavit in support of his application before the Court of Appeal and in fact his application before the High Court for leave to appeal. I shall begin with the application for leave to appeal which states as follows –

“TAKE NOTICE that this Honourable Court will be moved on Thursday the 30th day of April, 1987 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel can be heard on behalf of the Defendant/Applicant herein praying this Honourable Court for the following orders: (a) Leave to dispense with the statutory provision of 2 clear days between the service of this Notice of Motion and the day named in the Notice for hearing the motion.

(b) Leave to appeal against the Ruling/Decision of this Honourable Court dated 16th day of April, 1987 on grounds set forth in the Schedule to this Notice of Motion.

AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances. It could be seen that there is no prayer for a stay of execution pending an appeal. On the other hand only paragraphs 21, 22 and 23 of the affidavit in support of the Motion in the Court of Appeal could be said to be concerned with the question of stay of execution. They are as follows:-

“21. That my Counsel, Dr. D.O. Mowoe informed me and I verily believe him that the grounds of appeal are quite substantial and they raise very arguable and recondite points of law.

“22. That I am further advised by my said Counsel and I verily believe him that it is necessary to humbly apply to this Honourable Court for a stay of execution of the aforesaid Ruling of the High Court, Warri dated 16-4-87 pending the determination of my appeal so that the appeal, if successful, is not rendered nugatory or worthless.

“23. That my Counsel, Dr. D.O. Mowoe informed me and I verily believe him that the substratum of the subject-matter of the appeal to be lodged will be alienated/destroyed/lost if execution of the orders made by the High Court, Warri on 16-4-87 is not stayed pending the determination of my said appeal.”

It should be pointed out that s.15 Court of Appeal Act, 1976 and Order 3 r.3( 4) of the rules of the Court of Appeal requires that the application for stay of execution should be made first in the High Court. It is only when the application has been refused or there were special circumstances which made it impossible or impracticable to apply to the Court below will application be made in the first instance to the Court of Appeal. Section 15(1)(2) of the Court of Appeal Act 1976, provides:-

“Where in the exercise by the High Court of a State or, as the case may be, by the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.

(2) Nothing in subsection (1) of this section shall be construed so as to authorise an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court or the Federal High Court.

This section is unequivocal that an appeal against an interlocutory decision can only be made first by leave of the High Court or of the Court of Appeal. The application to the Court of Appeal in the first instance is specifically prohibited. This is re-endorsed by the provisions of Order 3 r.3(4).

Order 3 r.3(4) provides-

“Whenever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the court except where there are special circumstances which made it impossible or impracticable to apply to the court below.”

This provision has ameliorated the rigidity of s. 15(2) of the Court of Appeal Act 1976 by enabling interlocutory application to be made at first instance in the Court of Appeal. An application for stay of execution which could have been made in the High Court but was not, should in an application in the Court of Appeal give the special circumstances why it was impossible or impracticable to do so – see Premier Breweries v. Anere Construction Co. Ltd. (1987) 3 NWLR (PT. 62) 688. The application of the Plaintiff/Appellant was not intended and the ruling of the High Court did not determine the rights of the parties which is still pending in the substantive action. The ruling is therefore an interlocutory decision – see Omonuwa v. Oshodin. The appeal against the ruling is therefore an appeal against an interlocutory decision within the meaning of section 15(1) of the Court of Appeal Act. Accordingly the Court of Appeal can only validly exercise jurisdiction in the following circumstances –

The Appellant has sought leave to appeal in the trial Court, and was granted. The Appellant has sought leave to appeal in the trial Court, and was refused by the trial Judge.

If Appellant did not apply to the High Court for leave to appeal in the first instance, his application to the Court of Appeal for such leave is to give the exceptional circumstances which made it impossible or impracticable for him to do so – see Sections 15 Court of Appeal Act 1976 and Order 3 r.3(4) Court of Appeal Rules 1981.

The affidavit of the Respondent disclosed circumstances why he withdrew his application for leave to appeal before the High Court. The Court of Appeal would appear to have accepted the reasons as exceptional circumstances. It is however pertinent to consider whether there was a valid leave to appeal against the ruling on the interlocutory decision. I do not think there is.

The application seeking leave to appeal from the ruling of the High Court even though withdrawn, did not include the interlocutory ruling. The ruling on the application for interlocutory injunction was included only when Respondent applied for leave to appeal to the Court of Appeal.

Respondent did not in his affidavit depose to the exceptional circumstances which made it impossible or impracticable for him to seek leave in the High Court. The application in that respect is therefore contrary to the provisions of section 15(1), and the application having been made at first instance to the Court of Appeal is unauthorised. The Court of Appeal therefore was incompetent to exercise jurisdiction to consider it.

It is clear from the averments in the supporting affidavit that Respondent applied to the High Court for leave to dispense with statutory notice of two days for service of motion and for leave to appeal against the ruling. There was no appeal against the ruling. At the time the Court of Appeal exercised its jurisdiction, the court had only granted Respondent extension of time within which to appeal and leave to appeal. Respondent had not actually filed any notice of appeal pursuant to the extension of time and the leave granted. The Respondent did not seek and the ruling did not order the notice of appeal filed to be deemed to have been filed. In fact in accordance with the prayers sought, no notice of appeal could be deemed to have been filed as none was claimed. It is therefore my view on the authorities as they now are that no appeal has been brought in accordance with the provisions of – see S.15 of the Court of Appeal Act, 1976 and Order 3 r.5 Rules of the, Supreme Court 1985, see Ogunremi v. Dada (1962) 1 All NLR 663; Yola v. Agogo (1975) 1 NMLR 245; Tika Tore Pres., Ltd. v. Abina (1968) 1 All NLR 210; Cesare Missini & Ors. v. Balogun (1968) 1 All NLR 318. The Court therefore was not competent to grant the stay of execution. The appeal in this case has neither been brought nor entered. The Court of Appeal was therefore wrong to have exercised jurisdiction to grant the stay of execution.

The Ratio of Tika Tore Press Ltd. v. Abina (supra) where there was a notice of appeal, but no appeal had been entered in accordance with Ogunremi v. Dada, was that

“When, however, the Applicant has filed his notice of appeal in the High Court and has followed it up by an application for a stay of execution in that Court and his application is refused, his determination to appeal is manifested by his second application to this court when it is clear that he genuinely wished to appeal but it was not possible within that period to get the record of appeal ready in the High Court and it will be an injustice if he were deprived the opportunity of putting his application before the Court.” (1968) 1 All NLR at p. 213:-”

In Cesare Missini & Ors. v. Balogun (1968) 1 All NLR at p.321 the fact that a notice of appeal had been filed brought the case within the principle in Tika Tore Press Ltd v. Abina. The instant case does not fall within any of these principles.

Notwithstanding that this ground is sufficient to set aside the stay of execution granted by the court below, I think it is necessary to consider the reason adduced for the exercise of discretion. Having granted leave to extend time to appeal, the Court said,

“Likewise it appears only fair that applicant be granted a stay of execution of the judgment pending the appeal in order to maintain the status quo as between both parties – especial (sic) as the Applicant is only an individual whilst the respondent can be said to be a part of a multinational oil company.”

Although the power to grant a stay of execution is discretionary, it is an exercise of a judicial discretion which is guided by defined principles. It is not sufficient to rely on the whims of the judge in a matter where the parties are bound by the terms of their contract. In this case the Court of Appeal was imputing probably that the parties are not contractually equal and the court was therefore obliged to protect the Respondent against the Appellant.

There is nothing prima facie to justify this approach especially in this case when the Respondent was still in possession after the termination of the contract between the parties in accordance with its terms.

This Court has only recently held that “a discretion to grant or refuse a stay of execution must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an Applicant for a stay but does not adequately take into account the Respondent’s equal right to justice is a discretion that has not been judicially exercised. – See Okafor v. Nnaife (1987) 4 NWLR at p.136 per Oputa J.S.C. Where a stay of execution has been ordered in a pending litigation, the general rule is to maintain the status quo and not to allow either party take advantage of the litigation in dealings with the subject matter of the litigation.

The onus that in the circumstances it was unjust and inequitable to grant a stay of execution is on the party seeking to set it aside on appeal. There may be peculiar circumstances as in Balogun v. Balogun (1969) 1 All NLR 349 where there was an arguable legal point whether payment of rent is maintenance allowance, and a stay of execution was ordered pending the result of the appeal. The other ratio of Balogun v. Balogun, is that the impecuniosity of the judgment creditor will justify the grant of a stay of execution.

The case before us does not fall within any of the principles. The Appellant had exercised a right in a valid agreement to terminate the contract with the Respondent. The description of impecuniosity is too remote to be attributed to the Appellant. Beside, the affidavit of the Respondent has not shown any hardship which a valid termination of the agreement can cause to him. In any event that should not affect the right of the Appellant to exercise his right under the agreement – See Mayor of Bradford v. Pickles. It appears to me hardly arguable that the Court of Appeal had in the exercise of their discretion relied on matters extraneous to the issue before them.

The fact that Appellant is a multinational company has nothing to do with where the balance of convenience lies. The Court of Appeal did not therefore properly exercise its discretion in setting aside the injunction granted by the learned Judge. The ruling of the Court of Appeal of the 11th May, 1987 setting aside the ruling of the learned Judge dated 16th April, 1987 is hereby set aside.

I now turn to the issue of the application seeking extension of time to appeal and for leave to appeal. The power of the Court of Appeal to extend the time to appeal is prescribed in section 25 of the Court of Appeal Act No.43 of 1976. The circumstances where an application is refused in the court below is also prescribed in s.25(3). For ease of reference the provisions are reproduced:

(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

(3) Where an application for leave is made in the first instance to the court below, a person making such application shall, in addition to such period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.”

It is clear from the instant case that the applicant, apprehensive that he could not comply with the provisions decided to withdraw his application. Thus although an application to the Court of Appeal was not consequent upon the refusal of the Court below to grant leave, the striking out of the application in the Court below could for this purpose be regarded as a determination of that Court. This is what it should be even if the provisions of s.25(3) of the Court of Appeal Act cited above and Order 3 r.3(3) already discussed infer a refusal of the application. See Premier Breweries Ltd v. Anere Construction Ltd. (1987) 3 NWLR 688 at pp. 693-694 Olatawura, J.C.A. On this view the application by the Respondent for extension of time within which to apply for leave to appeal, and leave to appeal against the decision, with drawn and struck out on the 4th May, 1987 and brought in the Court of Appeal on the 4th May, 1987 was made in compliance with the provisions of section 25(3) of the Court of Appeal Act 1976. Although the Court of Appeal did not state the reasons for the exercise of their discretion, the averments in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 clearly disclose the reasons for the delay and why Respondent had to apply to the Court of Appeal for leave. Dr. Odje submitted that the Court of Appeal granted the application without reference to Ibodo v. Enarofia (1980) 5-7 SC. 42, and University of Lagos v. Olaniyan (1985) 1 SC. 295 and Order 3 r.4(2) rules of the Court of Appeal 1981. It was also submitted that the Respondent having not exhibited the relevant record of the proceedings of the High Court, the Court of Appeal had no material on which to base the exercise of its discretion. In his reply Dr. Mowoe submitted that the application was opposed in the Court below on the contention that the proposed grounds of appeal did not raise arguable points. He submitted that the Court held the ground 4 at least contained arguable points and granted the extension of time and leave asked for. It seems to me that Dr. Mowoe has ignored the point here raised, namely whether the court had before it the materials upon which to found the exercise of their discretion. I find it difficult to accept that the consideration whether a ground of appeal is arguable or not is a matter for the exercise of discretion. I agree that with other factors associated it would form the basis of the exercise of discretion. Where there are valid grounds of appeal there is no question of the exercise of discretion to grant leave if the application is properly before the Court. But it is generally essentially necessary for the exercise of discretion for applicant to produce all the materials necessary for the purpose.

In Ibodo v. Enarofia (1980) 5-7 SC. at p.57-8 cited to us by Dr. Odje, Aniagolu, J.S.C. laid down the requisites for the exercise of discretion in applications for extension of time to appeal and for leave to appeal which has been followed in subsequent cases –

“It cannot be over emphasised that where an Applicant required the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which it will be necessary for the Court to see in order to decide on the application must be exhibited. These normally should include, among others, the affidavits of the Applicant and/or his counsel; the judgments of the Courts below; the exhibits or so much of the exhibits on which the Applicants will rely to argue his application; his proposed grounds of appeal; where necessary the record of proceedings or so much of the record of proceedings as will enable the Court to found on the substantiality of those grounds based solely, or in the main, on the evidence given; the brief of the applicant’s argument, and any other document or documents which in the special circumstances of a particular case the Court will need to see in order to be able to decide on the matters in contest in the application.”

Respondent who was seeking the exercise of discretion based on the ruling against him did not even exhibit to his application the ruling appealed against. Accordingly the Court of Appeal purported to have exercised their discretion to grant leave to appeal and extension of time to appeal only on the Agreement between the parties and the proposed grounds of appeal. These are in my opinion clearly insufficient for the purpose of the exercise of discretion in such cases. I therefore agree with the submission of Dr. Odje. The contention of Dr. Mowoe that the point was not raised in the Court below is without merit. The fact is that the Court of Appeal has exercised a

discretion based on insufficient facts. This however is not the end of the matter. The question is whether in all the circumstances of this case the application for extension of time within which to appeal, or for leave to appeal merits any consideration. We have before the ruling of the learned Judge the Agreement between the parties which has given rise to this action. The Respondent has not shown that in considering the circumstances it is just that the application should be granted.

The action is concerned with the interpretation of the agreement which has been terminated in accordance with its terms. It is therefore just that the application be refused. I too will allow this appeal which is hereby allowed. The ruling of the Court of Appeal is accordingly set aside. Respondents shall pay N500 as costs of this appeal to the Appellant.

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SC.111/1987